We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Federal Circuit affirms award of $4.7 million in attorneys’ and expert fees

The Federal Circuit recently affirmed a sizeable award of attorneys’ and expert fees for litigation misconduct. MarcTec, L.L.C. v. Johnson & Johnson, No. 2010-1285 (Fed. Cir. Jan. 3, 2012). In MarcTec, the patentee sued Cordis Corp. for the infringement of patents relating to surgical implants with bonded polymeric material. The specification of the patents and their file histories made clear that the patentee disclaimed stents. The patentee, however, accused the defendant’s stents of infringing its patent. The patentee attempted to avoid its disclaimer by mischaracterizing the role of the specification and file history in construing claims. It also endeavored to preserve its infringement case by introducing an unreliable and inapplicable expert opinion that defendants’ process would infringe in a hypothetical situation that required the delivery of a spray at the speed of sound. The Federal Circuit upheld the finding that this behavior constituted litigation misconduct as well as bad-faith, frivolous litigation. Both findings served as independent grounds for deeming the case exceptional, which enabled the court to award the defendant $4.7 million in attorneys’ and expert witness fees.